BALCA Finds Employer’s Attempts to Screen U.S. Workers Insufficient

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Hardwood Floor Installer.”

Upon evaluating the Employer’s Application for Permanent Labor Certification, an Audit was issued. In this Audit Notification, the CO asked the Employer to explain why US workers were rejected. After reviewing the Audit response, the CO denied the labor certification stating the Employer rejected three US applicants for reasons that were not job related. The CO “found the rejections were based on the failure to meet the Employer’s job requirement of having two years of hardwood floor installation experience.” He discovered three of the candidates have other experience in the construction industry that he believed would meet the requirements for the job.

The Employer requested reconsideration and BALCA review. They argued the CO was wrong in judging these three candidates were qualified for the position. Even though the applicants did have experience in “general carpentry/and or construction,” they did not believe this experience was enough to meet the requirements of the Hardwood Floor Installer job. The Employer included a Business Necessity Letter in its Audit response materials. The Employer pointed out that one of the candidates did have skills in hard wood flooring installation but he did not list how he obtained that experience. The employer also provided proof to the CO of letters that they had sent to the US worker applicants asking for them to contact the company with further information on their qualifications. The Employer claimed none of them responded to the letters.

Once again, the CO denied the labor application because he thought the Employer had “unlawfully rejected US workers who were able and qualified for the job opportunity.” As the regulations provide – if a worker, during a reasonable period of time, could be trained in a particular skill, than the company does not have a legitimate basis for refusing to hire them. The CO forwarded the case to BALCA for review.

Upon review, the BALCA panel affirmed the denial because they believed the three US workers who applied for the job opportunity were rejected for reasons that were not lawful or job-related. The Board believed it was the responsibility of the Employer to find out if these applicants could have become fully trained in the position. The BALCA panel suggested that the Employer may have come closer to meeting its burden if they actually provided proof that the applicants received their letter seeking more information, i.e., they should have sent the letters via certified mail, return receipt to the potentially qualified applicants.